Tribal courts
Tribal courts are judicial systems established by Native American tribes to resolve disputes and enforce laws within their communities. Historically, Indigenous nations had their own mechanisms for dispute resolution prior to European contact, with practices varying widely among different tribes. Under U.S. law, tribes have the authority to maintain or adapt their adjudication procedures, although this right can be limited by Congress. Tribal courts have evolved significantly over time, with some influenced by Anglo-American legal traditions while others have preserved Indigenous practices.
For example, the Navajo Nation has developed a comprehensive judicial system with a separate Supreme Court, while other tribes maintain traditional councils for mediation and adjudication. The Courts of Indian Offenses, established in the late 19th century, laid the groundwork for many modern tribal judicial systems, though they were initially imposed by federal authorities. In recent years, U.S. Supreme Court rulings have impacted the sovereignty of tribal courts, allowing for both expansion and limitation of their jurisdiction, especially in criminal matters occurring on tribal lands. This ongoing legal evolution reflects the complexities and challenges faced by tribal nations in exercising self-governance and maintaining their legal traditions.
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Tribal courts
Prior to European contact, all Native American nations and bands had institutional mechanisms for settling disputes. The mechanisms varied from Alaska Native song duels and Yurok mediation to Cheyenne and Pueblo councils. Under US law, tribal governments have the right to retain or modify adjudication procedures unless Congress limits that right.
For example, in the nineteenth century, the Cherokee legal system underwent a series of changes from a clan- and council-based system to a system based on an Anglo-American model. In the late nineteenth century, Congress expanded federal court jurisdiction in Cherokee territory and finally passed the Curtis Act (1898), which abolished Cherokee tribal courts.
Pueblo adjudicatory systems have been influenced by Spanish and US institutions and policies but were never abolished by federal edict and continued to develop over time. For example, many Keresan pueblos have a council that decides cases. Many disputes are settled before a partial council or single official acting as a mediator. Important cases are decided by the full council; the presiding officer may act as both a prosecutor and judge. Litigants may be advised by members of their nation or ceremonial group members. In a modification of this system, Laguna Pueblo has a full-time judge while retaining the council as an appellate court.
In the mid-nineteenth century, a number of tribes were confined to reservations, creating new problems of social order. In 1883, the Department of the Interior established Courts of Indian Offenses. The judges, tribal members appointed by reservation superintendents, enforced administrative rules established by the Department of the Interior. The superintendent had appellate power over the judges’ decisions. In 1888, Congress implicitly recognized the legitimacy of these courts by appropriating funds for judges’ salaries.
By 1900, Courts of Indian Offenses had been established on about two-thirds of the reservations. These courts were even established in some pueblos, where they competed with Indigenous legal systems. Courts of Indian Offenses have an enduring legacy as a model for the procedures and codes of many contemporary tribal judicial systems.
In 1935, substantive law administered by the Courts of Indian Offenses was revised. Moreover, the Indian Reorganization Act (1934) made it easier for nations to establish court systems less dominated by the Interior Department. Insufficient tribal economic growth slowed replacement of the Courts of Indian Offenses.
Tribal courts vary in size, procedure, and other matters. The Navajo Nation, for example, implemented an independent judicial branch that is called the Judiciary Committee of the Navajo Nation Council, which includes a Navajo Nation Supreme Court. There are seven judicial districts and fourteen district court judges. The practice of law before these courts is regulated. Appeals may be taken to the high court. Appellate decisions of note are published. In addition, there are local “peacemaker” courts with more than two hundred overall peacemakers who act generally as mediators.
In the twenty-first century, a series of US Supreme Court rulings have both expanded and limited the sovereignty of tribal courts when prosecuting crimes committed on Native American land. McGirt v. Oklahoma (2020), in deciding that an enormous portion of eastern Oklahoma fell under the jurisdiction of tribal and federal courts instead of the state of Oklahoma (the Supreme Court found that the large section of land, which was previously designated as being an American Indian reservation, was not returned to the jurisdiction of the state of Oklahoma under the Oklahoma Enabling Act of 1906, and therefore the prosecution of crimes committed by Native Americans on this land fell to tribal and federal courts, not state agencies), strengthened the power of tribal courts by limiting the power of state enforcement agencies. However, Oklahoma v. Castro-Huerta (2022) weakened the decision reached in McGirt v. Oklahoma by ruling that tribal, federal, and state agencies each had shared jurisdiction when prosecuting non-Native Americans who have committed crimes against Native Americans on Native American land. After this decision was reached, many experts saw it as a precedent that could allow for the further weakening of tribal sovereignty by allocating further power to state agencies in Native American affairs.
Bibliography
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